Blue: The Color of Honor

May 15, 2012 1 Comment

Not for money or thanks, fame or fanfare.  Our nation’s LEOs rise each day focused on a mission to serve and protect.  With a silent prayer for their safe return, their families see them off knowing that their loved ones were called to a profession and nothing could keep them from their sworn duties.

This week we honor all LEOs and remember those who brought to the fight everything they had to give. On that day, at the end of their watch, their commitment and dedication to their communities were not enough. Their training and experience were not enough. So, true to the heart of a warrior, they gave their lives.

Let us take time to pause this week and remember their sacrifices. May we never forget the honor they demonstrated in their last moments. This week and always, we must remember and care for the spouses and children they left behind.

Through our actions and our words, I hope we make them proud as we continue their work here on earth. Share those blue ribbons with friends as well as strangers.  Tell them about our fallen brothers and sisters and the sacrifices they made. Tell the stories of their devotion to their communities. Tell everyone you know how proud we are to be part of this profession and how blue is the color of honor.

Stay safe.

Filed under Education, FOP & POST, Law enforcement memorial, Media Relations, Officer Involved Shooting, Officer Safety, Politics & Current Affairs, Social Networking Tagged with , , , , , , ,

In The Heart Of A Hero

May 8, 2012 1 Comment

This weekend, Hunting For Heroes gathered five disabled LEOs in Missouri for a turkey hunt. The honorees came from Pennsylvania, Texas, West Virginia, and Ohio. Some injuries were visible and some were not, but all were apparent. All were disabled due to injuries sustained in the line of duty.

Volunteers, some of whom are disabled LEOs, came from hundreds of miles away to bring to bear their efforts and resources to serve these fallen brothers. Some of the volunteers were active LEOs and some never served. Others were business owners and company representatives. This weekend, all were focused on a common mission: to serve and support our honorees.

This weekend, our heroes represented a broad age range. While one was recently injured in the line of duty, the others were injured three or more years earlier. Their lives, and the lives of those close to them, changed forever as a result of their injuries. They have endured physical and emotional hardships compounded by the financial hardships of the loss of a salary and benefits. In most cases, their stories have become far too familiar. Medical retirement from law enforcement leaves LEOs in dire financial straits. In addition, many feel abandoned by their departments and the governments they served, their final days of service long forgotten in a morass of rules, regulations and red tape. Benefits promised and outlined in policies serving as poor substitutes for the ability to work 40 hours per week and collect a paycheck and earn benefits. Finally, their spouses, standing strong in the face of adversity, bear the weight of unimaginable stress searching for programs and financial relief that seems to always be on the horizon. All the while, these LEOs move forward. Sometimes dependent upon others for even basic necessities of life.

This weekend, however, these broken heroes were taken away from the daily stress of their new lives and brought to an environment of healing, camaraderie and support to continue their life-long healing process. For one weekend, their needs were met, they shared stories, laughed and cried with fellow LEOs in an atmosphere of support befitting the sacrifices they made for their communities. In a beautiful setting in rural Missouri, we saw that while their bodies may be broken, their hearts are intact. Their drive to succeed is alive and well and their refusal to give up is as strong as ever. They are, simply put, still LEOs in every sense of the word.

They may no longer wear their uniforms, but we all know the uniform does not make a LEO. Being a LEO is a calling. It is a passion to serve and to answer the call of help from strangers.  It is that passion that carries these brave men through the surgeries and pain they have endured.

With handshakes, hugs, and tears, we parted from our new friends today. The heroes and their families thanked us for what we did for them. They said they appreciated our services and our sacrifices. However, through our service to them, we renew ourselves. We gave them a few days of time back in the fold of the law enforcement community. It is a strong community with arms broad enough to hold up and support the fallen and we must support them. We must do a better job of ensuring that no LEO injured in the line of duty ever wants for healthcare or groceries for themselves and their families. For if we are unable to focus our efforts on those among us who gave so much, then we will fail as public servants and our cities and counties cannot count themselves as communities. A community cares for those in need.

You can help Hunting For Heroes by letting us know about a disabled LEO in your community. You can also make a donation to the organization. Finally, you can serve as a volunteer at one of our events. Come see the smile on the face of a disabled LEO who meets the commander of the state patrol who arrived just to meet him. Watch a disabled LEO’s face as he receives gifts and spends time with people who gather just to honor him and his family. See the faces of family members who see their injured LEO smile and laugh for the first time in years. Watch as these heroes learn that they can be a part of the outdoors and fish and hunt like they did before their injuries took a toll. Support Hunting For Heroes and see what true passion, courage and determination resides in the heart of a hero.

Stay safe.

Filed under disabled LEOs, Education, LEO Litigation, Media Relations, Officer Involved Shooting, Officer Safety, Politics & Current Affairs, Social Networking Tagged with , , , , , , , , , , , , , , , , , ,

Responding To The “Good Shoot”: Do I really need a lawyer?

April 10, 2012 1 Comment

It happens more often than not. A LEO is forced to use deadly force and the facts of the events leading to the shooting and the shooting itself clearly support a lawful, appropriate application of force. The criminal investigators interview witnesses who support the use of deadly force and the administrative investigation reveals no violation of departmental policy or state or federal law. This should not surprise anyone as LEOs in the United States are exposed to a tremendous number of training opportunities after they complete training academies. Judgmental use of deadly force classes and simulators as well as role play training leads to this result.

When I speak with and train LEOs, especially about the use of deadly force, I often hear this question, “Why would I need a lawyer if the use of deadly force was clearly justified?” This question strikes at the heart of the use of deadly force in our society. A shooting is a seizure. Every use of force by a LEO is an application of government authority. Therefore, every use of force and every shooting raises issues of constitutional import and courts justifiably take the LEO’s actions seriously.

Let’s look at the United States Supreme Court’s (USSC) opinion in Graham v. Connor, 490 US 386 (1989). This case sets out the standards applied to the use of force to control, arrest, and seize a person. In short, the USSC stated that the use of force by a LEO will be evaluated objectively according to the reasonableness test of the Fourth Amendment to the United States Constitution. However, the USSC also discussed the perceptions of the LEO in a use of force case. This analysis is critical to this blog post.

“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. []. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” 490 at 396-397. (emphasis added)
So, in this quote we see that courts will apply an objective test when evaluating the application of force. Courts are also instructed to take into account the “tense, uncertain and rapidly evolving” circumstances facing the LEO before, during and after the application of force. Finally, the USSC states clearly that the LEO’s intentions will not factor into the use of force analysis. In this quote we see, in my opinion, why it is critical for every LEO to consult an attorney after every OIS.
First, the facts that make up the analysis of “objective reasonableness” are gathered from many sources including the statements of the LEO who used deadly force. This means your statement to investigators is critical. You should have adequate time to rest, time to decompress and time to speak with an attorney to make certain that you can adequately relate the facts of the incident. Too often, LEOs I meet with after an OIS were ready to relate the “bare bones” facts just to get through the interview as quickly as possible if for no other reason, because they were nervous or had decided that the justification for the use of deadly force was obvious. It is critical that the LEO articulate exactly what happened before, during and after the use of deadly force. It is also critical for the LEO to relate any subjective perceptions that may not be available to the investigators. It is critical to interject into the investigation “the facts and circumstances confronting them” mentioned in Graham. The use of force is always a discretionary decision. You must make certain the investigators understand your perceptions as well as the facts.
Second, we have seen many times that the statements of the LEO are questioned and treated as suspect. In the case of Officer Rankin, he relayed the facts of what happened after a fatal OIS. Therefore, the only version of details available about the use of force were those provided by Officer Rankin. The problem in that case, as with so many others, is that the critics chose to disregard his statement as untrue. A grand jury, a civil trial and intense media scrutiny followed and he was cleared. However, there are those who will never believe his statements.
Third, the media, both formal and informal, will judge the use of force. Recently, for the second time in recent memory, a major news entity has admitted falsifying and altering the facts of an incident for the sake of manufacturing a better news story. There is no longer any comfort in believing that the work of reporters will eventually bring out the truth. While this was hopefully an isolated incident, LEOs are on their own to make certain that the investigations done by sworn investigators will gather and accurately document all facts after an OIS.

Put simply, it is important to protect yourself after an OIS. The opportunity to retain and involve counsel is often presented through a narrow window because the effectiveness of the attorney will be limited after some point. I have been involved in many situations representing LEOs where I was limited in the options available and some options were foreclosed completely due to the actions of the LEO before I was involved. In more than one situation, the LEO lost all rights to pursue justice and remedies in the courts. I discussed these situations in a previous post.

Finally, the attorney is able to objectively evaluate the facts of the incident and confirm the appropriateness of your actions. It seems obvious that you will likely believe that every use of deadly force was objectively reasonable because you made the decision. The role of the lawyer is to determine if facts outside your knowledge may create an alternative version of events. For instance, when you focused upon the suspect’s chest after looking at the gun in his hand, do you miss the fact that the suspect dropped the gun after the second of your five shots? Due to auditory exclusion, were you unable to hear the neighbors of a 15-year-old screaming that the gun in his hand was a toy? Due to low light conditions, were you unable to see that the object in the suspect’s hand was a cellphone and not a firearm? While these and other facts may not change the fact that the shooting was justified, an attorney is able to monitor these facts to ensure that your statement of your perceptions are accurate and support your decision to use deadly force.

The presence of an attorney at the scene of an OIS can benefit the LEO in many ways. While some LEOs are concerned about how this will appear to their chain of command, through proper education, this fear should be rendered moot. I know from experience. I have been with many agency heads who have told me I would be among the first people called to the scene if they were involved in an OIS. The lawful application of deadly force is never easy to watch on a video or listen to when the LEO relates what occurred. Remember that the use of deadly force is often subjected to scrutiny by individuals who are untrained and others who are suspicious of every OIS at the outset. An attorney is the only person on the scene of and during the investigation of an OIS who is focused solely on protecting the LEO. You are entitled to counsel. Protect yourself. Stay safe.

Filed under Active Shooters, Constitutional Law, Due Process, FOP & POST, LEO Litigation, Media Relations, Officer Involved Shooting, Officer Safety, Politics & Current Affairs, Social Networking, Use of Force, Use of Tasers

Lawsuits Surrounding Active Shooter Incidents: Is the pursuit of compensation overshadowing the goal of prevention?

March 28, 2012 Leave a comment

We have a sophisticated civil justice system in the United States. Individuals can pursue relief in local, state and federal courts with or without attorneys. Individuals have pursued cases to the United States Supreme Court without counsel to argue before the justices and seek redress for injuries. Without a doubt, our country provides an open and accessible forum to those who seek a civil remedy against a person, government or corporate entity. Those remedies range from monetary awards to injunctions. All are enforceable with the considerable authority of the courts.

When a tragedy occurs, it is reasonable and expected that people will seek the assistance of our courts. I routinely represent people on both sides of these cases. I file suit on behalf of people injured or killed by DUI drivers, armed robbers and people who are merely careless. I also defend cases filed by people who are injured or families who have lost someone. Despite the news stories about excessive verdicts, judges and juries are best known for careful consideration and reasonable verdicts. I have personally watched trial and appellate courts wrestle with tough issues and spoken with jurors after verdicts to learn how much they focused on the facts and law to arrive at a resolution. After all, in the end cases goes to a jury because the parties are unable to resolve their disputes.

There is no doubt that the policies and procedures of governments and law enforcement agencies are shaped by jury verdicts. The $8 million verdict this month in connection with the Virginia Tech shooting will get the attention of administrators irrespective of the anticipated appeal. A jury found fault and put a price on the compensation for the parents of the two students. This verdict will resonate for some time on campuses around the United States and policies will reflect this renewed focus on student safety. However, are those efforts appropriately focused on preventing future strategies?

With regard to active shooters, we are witnessing a conflict between opposing polices and philosophies. While everyone wants to prevent these tragedies, that is where the sides diverge. One side believes that high verdicts against landowners, universities and corporations will prevent future active shooter incidents. The other side understands that nothing can truly prevent the active shooter and recognizes that we can only find ways to reduce the threat and when the active shooter strikes, we must find ways to neutralize that threat as quickly as possible. Unfortunately, this debate is further complicated by the fact that the first group wants to restrict or eliminate the ability of citizens and law enforcement to react to the active shooter by limiting access to firearms. For example, LEOs have been able to carry firearms off-duty all over the United States since 2004. However, I have helped several LEOs who were criticized by college administrators for carrying firearms while attending classes. One LEO received a complaint when he wore his firearm into a day care center when he dropped off his child. He was in uniform. You just cannot make this up.

Only in rare instances do we have any advanced warning of an active shooter. Witnesses saw Colin Ferguson loading magazines on a New York City subway before he shot 25 people killing 6 on December 7, 1993.  However, more often than not, the warning signs are pieced together after the fact during the investigation. Although many active shooters have been stopped before they act out their plans, if we rely upon advance notice to reduce the number of deaths and injuries from active shooters, we will continue to be disappointed in our efforts.

Active shooter incidents are typically over within a few minutes. Intervention by LEOs or armed civilians must be swift and decisive. It is extremely rare for an active shooter to leave a scene and return some time later. Yet this was exactly what the active shooter did at Virginia Tech on April 16, 2007. Part of the threat and fear of an active shooter is the lack of predictability. That will never change.

We have a jury verdict nearly five years after Seung-Hui Cho killed 32 people and wounded 25 others on a college campus. Long after these heartbroken parents buried their children and far into the recovery for the injured students, we are still listening to self-proclaimed experts tell us about law enforcement techniques. As I stated in a previous post, they continue to criticize our profession and blame everyone from the LEOs to gun manufacturers.

The verdicts will not protect anyone, the news articles will not save anyone and the so-called “experts” will not be around to run toward the gunshots to save lives. It will be the LEOs who respond and the armed civilians on the scene who will protect the potential victims of the next active shooter. Perhaps when both sides of the argument agree on this point, the carnage will stop or at least the numbers of injured and killed civilians will go down. It would help if the media focused half of their attention on educating the public on how to respond to these incidents and less upon the verdicts years after the funerals.

Until then, LEOs will train to respond, plan for every contingency and prepare for the inevitable criticism that follows any incident. We do not need verdicts to motivate us. It is part of the oath. Stay safe.

Filed under Active Shooters, Constitutional Law, Due Process, Education, Legal Update, LEO Litigation, Officer Safety, Politics & Current Affairs, Use of Force Tagged with , , , , , , , , , , , , , , , , , , , , ,

Lance LoRusso Becomes a Regular Contributing Author to lawenforcementtoday.com!

March 12, 2012 Leave a comment

I just submitted an article and am honored to become a regular contributing author to http://lawenforcementtoday.com. The website reaches over 160,000 people and LEOs from around the world! You can also follow the site on Twitter @LawEnforceToday and find them on Facebook! Stay safe.

Filed under Case Law, Constitutional Law, Education, Legal Update, LEO Litigation, Media Relations, Officer Safety, Politics & Current Affairs, Social Networking, Use of Force, Use of Tasers Tagged with , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Time Away From The Job Makes A Better Crime Fighter

March 7, 2012 1 Comment

I remember when I was applying for my first job in law enforcement. I spoke with LEOs from many different agencies and asked a thousand questions. Truth be known, I probably drove them crazy! How much time do you spend out of the office? How much training do you get each year? What type of firearm do you carry? How is the culture? Do people stay for years or move on after a few years? I even asked about retirement benefits, go figure!

There was one question I did not ask and to this day, I cannot tell you why. “How much vacation do you get each year?” Looking back, that may have been the most important question for me to ask! The older I get, the more I realize what an important piece of information that was to me.

I know when you started working as a LEO, you were convinced that if you were out for one day, crime would take over the world! Robbers would rob, burglars would burgle and people would start ripping off their mattress tags! It would be chaos! As you know, this feeling wears off and we go forward knowing that the world will not end if we take a day off. However, we then encounter other reasons to avoid putting in for annual leave. The shift is short-handed, you need the overtime, you are working part-time jobs in your off days, etc. Before you know it, you are a seven-year veteran with a great work record, lots of training and a case of burnout that could kill a horse! That is how it happens, one shift at a time.

Now burnout is a bad thing for many reasons. First and foremost, your body becomes less able to manage normal levels of stress. Second, you become less tolerant of the daily nonsense LEOs encounter from the public and the agency. Finally, and most important, you become careless. This job demands your highest levels of attention. Being tired, being lax or getting into a rush can get you hurt or killed. Even worse, it can get someone else hurt or killed.

No matter how great your working conditions, you need a vacation at least once per year. If you are like me, it takes more than a long weekend to push in the clutch and let the RPMs wind down. You need a week, even if you never leave town. I’m talking about time away from the job. You do not need to head to see the big rat or one of the seven wonders of the world to decompress, get the stress out of your system and renew your commitment for the profession. You just need to separate yourself from your work!

Perhaps you work in a department that does not have any politics going on, has no stressful calls and no conflict whatsoever. If so, readers of this blog would love to apply! Even if you do, and I doubt it, the job itself is stressful enough to warrant a break.

Still don’t believe me? Ask your family. They’ll tell you…if you are willing to listen. Your spouse would like to see you out of uniform, pun intended. Your kids would like to see you for more that a few minutes between shifts and part-time jobs. Your friends would like to get you out for a movie, ball game or BBQ. Just ask them then listen to their answers.

So, before you find yourself writing someone a ticket for walking a cat without a license or doing a felony stop on a kid riding his bike without a helmet, take some time off. Check your calendar this week. Check your department schedule for the next few months. Look at your annual leave bank. You can afford some vacation time. Schedule it and take it. You will renew your desire to do the job, your family will benefit and trust me, crime will not overrun the world in your absence.

If crime does take over the world in your absence, when you get back you can put on your cape and take care of business!

Stay safe.

Filed under Education, Keeping it light, LEO Litigation, Officer Safety Tagged with , , , , , , , , , , , , , , , ,

From Hero To Bad Guy In One Budget Vote: The Demonization of Public Safety

February 29, 2012 3 Comments

In my house, we have a budget. Everything down to the food for the pups, we plan ahead. Now some of those plans involve the unexpected. Boo and Scout love their bones, but occasionally, they drop one in the yard. Of course, we need to replace it. We also think about our lives down the road. I love practicing law, but I might actually retire one day and spend all my time with the redhead. That is my dream anyway. We put money away to reach our plan to retire. We work each day keeping our plans for the future in mind.

During those days of working and planning for the future as well as when we retire, we plan to be protected by public safety personnel. While we save to buy groceries when we are 80, we are not saving to pay for police protection, EMS response or firefighters to put out a fire at our home. That is something we expect to be provided by our government. I must brag that our public safety folks in Cobb County are some of the best in the country! Just as my wife and I have plans, each of those public safety employees has a goal, plan and a dream for retirement.

In public safety, as in any other endeavor, there is a quid pro quo with regard to retirement. If you work for low wages, accept the conditions of a job that 99% of the public could not and would not do and accept the fact that you may not come home at the end of your shift, the public that you serve will provide a safety net when it comes time for you to retire. Your retirement will be paid every year for the rest of your life. The amount of that you will receive can be calculated to the penny based upon your years of service as a percentage of your annual salary. The annual amount of a public safety retirement is no surprise to the personnel or the government that employs them.

So, I have been amazed lately that public safety retirements have come under attack. Suddenly, the “reason” that governments around the United States cannot survive in tough economic times is because public safety employees” make too much money” and their “retirements cost too much!” Some governments have gone so far as to seek bankruptcy as a way to avoid the obligation to pay these retirements, even for those public safety personnel who retired long ago!

Now it seems simple to me that if a government entity knows what obligations it has with regard to the amount of money necessary to fulfill the promises made to public safety personnel retirements, those funds should have been budgeted, planned for and expected every year. Budgets are not destroyed based upon long anticipated expenses. Budgets should only be threatened by unexpected expenses. This is the same as in our home budget.

Some will disagree. “Lance, the reason the budgets are threatened is because the economy crashed and there is less income to pay the government’s obligations.” This is nonsense. Like our home, the government should have a reserve fund to ensure all obligations are met, including the retirement obligations to public safety employees. This is not a difficult concept. If circumstances change, cut the budget elsewhere. The first obligation of any government is to protect the citizens. This means living up to the promises made to those who fulfill that obligation.

So, why have public safety pensions come under fire? If there is truly not enough money in a government budget how is that the fault of the brave public safety workers who did everything we asked of them and more? Why do we allow elected officials to demonize the people who did nothing to place the government in this position? We must point the finger back at these elected officials and tell them that mismanagement is the demon; pure and simple.

However, do not be naive. Public safety pensions are under attack for another reason. There are people who believe that public safety personnel are overpaid….yes, overpaid. They portray public safety personnel as employees who work for a short period of time and then live off the government for the rest of their lives. Listen carefully to their arguments. They make it sound like your pensions are not earned! A pension is earned every shift, every day, every call. Every child taken into protective custody, every body pulled out of a fire and every felon apprehended entitles public safety personnel to that pension. There is something more to this pension. Public safety personnel could work in the private sector and make more money throughout their careers. If they made more, they could save more for their own retirements. They choose to accept less money for 20 years in exchange for a promise from the people they serve. It is that simple.

In every society, there are people willing to step up to perform the undesirable tasks that are critical to the success and safety of that society. Without these individuals, our society would be a different place. In the case of public safety personnel, we would have no one to call when faced with a medical emergency, our property would be in jeopardy and we would be left to protect ourselves when faced with criminals. We make a promise to those who step forward to protect our society; make it thorough a career and we will provide for your retirement. That is the nature of a pubic safety pension. It is not a give away, it is not entitlement spending.

Watch out for those who demonize what you worked so hard to achieve, or worse, those who support allowing a government to avoid its obligations with regard to public safety pensions. They are not conservative, they are not fiscally responsible and they are no friends of public safety. Supporting public safety means more than making speeches and promising to be tough on crime. The true measure of a politician is a commitment to the obligations of government including public safety and the promises made to public safety personnel. Nothing short of living up to those obligations is acceptable.

Speak out, get involved and VOTE! You earned the right to do all three. Stand up for yourselves and each other and do not allow anyone to turn our heroes into demons.

Stay safe.

Filed under LEO Litigation, Media Relations, Officer Safety, Politics & Current Affairs, Social Networking Tagged with , , , , , , , , , , , , , , , , ,

Civil Suits By LEOs: Your Rights on the Civil Side of the Law

February 19, 2012 Leave a comment

You are driving your patrol vehicle facing a green light at a busy intersection. In a scenario played out thousands of times each day, a driver approaching the red light from the right is too busy texting a friend to pay attention to the color of a traffic signal. He is traveling 50 miles per hour and never touches the brakes as he enters the intersection and strikes the passenger side of your patrol vehicle.There was no way for you to avoid the collision.

The impact is severe. When your car stops spinning, you realize you are hurt. Not the type of bruising and soreness you feel after arresting a resisting suspect, I mean really hurt. Your first responder skills kick in as you take a moment to assess your injuries. When you see the deformity in your right arm. you tell radio to send EMS code 1.

I have had the honor to represent many LEOs in many types of cases. I’ve stood with LEOs in grand juries, trial courts, civil service boards and internal affair interviews. I have also stood and protected LEOs and their families when they were injured on the job. I’m not just talking about workers compensation cases. I’m talking about using the civil courts to recover money damages for LEOs injured on the job.

Most of these cases involve motor vehicle collisions. However, that is not always the case. I sued on behalf of a LEO in response to a use of force claim filed by a young man and his parents after the LEO shot the young man. The LEO shot several times after the young man stabbed the LEO. I sued the perpetrator for the stabbing and the parents for buying the knife. I also sued a person who falsely alleged that a LEO fondled her on a traffic stop. We were successful in both cases and many others.

Civil suits are nearly always available to LEOs any time they are injured by the actions of another. Sometimes, the suits do not make sense, but often, this is the only way for the LEO to clear his name. In the case of the LEO falsely accused of fondling a woman on a traffic stop, he now has a copy of the civil judgment against this accuser in his personnel file. No lingering questions hanging over his head or rumors during promotion reviews. He was cleared. His accuser also has to write him a check every month.

Civil suits are separate and apart from a claim under workers compensation. Workers compensation is a no-fault system. If you are working and suffer an injury, the workers compensation system is there to ensure that your medical bills and other benefits are paid. However, you can file a claim for workers compensation and a civil suit against the person who injured you. In most states, however, you cannot sue your employer in a separate civil suit.

In the case above, you would have a potential civil suit against the driver who ran the red light. You may also have a claim against the driver’s employer. These claims often settle without the need for a civil suit especially when people pull out in front of LEOs. It is hard to say you did not see the marked car coming! Juries are very unforgiving of people who injure LEOs; especially DUI drivers!

The important thing is to find an attorney who is not working for your agency or government entity. You must find an attorney who will independently evaluate the merits of your case. In my experience, agencies do not care if you file suit against a person who injures you and are generally very supportive. This is especially the case when you file a countersuit against a person who sues you for excessive use of force. Remember that the suspect who punches and kicks you can be sued! That is the basis of your countersuit when that same suspect sues you for excessive use of force after you arrest him.

Finally, the attorney you choose must be willing to go the extra mile. I once represented a LEO who was shot serving a warrant. He and his partner were able to exit the house. The suspect took his own life after the responding LEOs formed a perimeter. I wanted to file suit against the suspect’s estate, but the family tried to prevent this by refusing to set up an estate. So, I set up an estate for the suspect, appointed an attorney to represent the estate and filed suit against the suspect’s estate! It took over two years, but were able to collect a settlement for the LEO. He is still working today, and I am proud to know that I helped him.

I learned many things in law school and I learned a lot on the street as a LEO. I practice law with a philosophy from the street, “Never give up.” Do not forget to consider a civil suit if you are injured on duty. This is so important to protect yourself and your family as you may not be able to work part-time jobs or earn any overtime while out of work. A recovery in a civil suit can help fill those gaps especially if you are not able to return to work. Read my blog post on underinsured/ underinsured motorist (UM) insurance to make certain you are doing everything possible to protect yourself. UM insurance on his personal vehicle would likely help our LEO in the accident described above.

You are a part of our court system, civil and criminal. Do not hesitate to use that system to help you when you are injured on and off duty. You deserve access to our courts. In fact, you earn that access every day.

Stay safe.

Filed under Education, Insurance, LEO Litigation, Officer Safety Tagged with , , , , , , , , , , , , , , ,

Whitney Houston and the Push to Legalize Drugs: A Perspective From the Street and a Reality Check

February 12, 2012 5 Comments

I love music. Music has been a big part of my life. I drove around in a patrol car listening to everything from jazz to rock to classical, often depending upon how my calls progressed on a given day. Music provides an escape for me, helps me relax and inspires me in many ways.

Today, I watch story after story about the passing of Whitney Houston. Everyone seems to be so shocked that this 48-year-old woman passed away. LEOs are not surprised. We see first hand thousands of people who never live to the age of 48. We see lives torn apart, children abused and people killed by illegal drug users driving under the influence. While the media is dancing around the reason for her cause of death and whether or not it was drug related, we all saw the effect of drugs on her life.

So, imagine if drugs could be purchased at every grocery store or gas station. People could pick up a hit of speed on the way to work or a six pack of ecstasy on the way to a party. Perhaps you’re having trouble sleeping. You could get 50 morphine tablets to help you get some rest. The possibilities are endless. So are the effects.

People who use illegal drugs have friends and families….at least for a while. They drive on the roads that we all use everyday. They make the products that we use, the cars that we drive, and provide the services we need to live in our society. We all suffer a tremendous cost, both financial and personal, based upon the effects of illegal drugs. Talk to the children of people who are too high to feed them, the parents who lose track of their children who would rather get high than anything else or the people injured by drivers who are high behind the wheel. LEOs see this every day.

Drugs are not bad because they are illegal. Drugs are illegal because they are bad. I do not know what caused the death of Whitney Houston. Perhaps it was a congenital disorder completely unrelated to her past. Perhaps she fell in a common household accident. Or perhaps her body simply had enough. We may never know.

Whitney Houston was an American treasure. Her voice was a gift from God. Her short life reminds us of tragedies played out in our country every day. Families destroyed, people killed and many more permanently injured, the proof is right there for anyone to see. However, we will not see a condemnation of drugs in the aftermath of Whitney’s Houston’s demise. We will instead see people talking about how sad they are about her passing, how unfortunate it is that she passed away at such a young age and how she will always be remembered. Then Monday, the political machine advocating for the legalization of drugs will crank up and move forward.

If you want to know about the effect of illegal drugs, ask any LEO. Ask them about the children in protective custody, the parents who receive death notifications about their children and the innocent motorists whose lives changed forever in an instant.

Ask any LEO because they are on the front line and see the effects of illegal drugs every day. Ask the families of the fallen LEOs killed by drug dealers and users. Ask them. They will tell you. Will you listen?

Stay safe.

Filed under Illegal drugs, Officer Safety, Politics & Current Affairs Tagged with , , , , , , , , , , ,

United States v. Jones: A breakdown of the case that changed the use of GPS

January 29, 2012 Leave a comment

Last week, the United States Supreme Court issued an opinion that will change the way LEOs do business. As always, I encourage you to read the full opinion. Like any opinion from the USSC, United States v. Jones contains many lessons for LEOs. In this post, I will go through the opinion for you, point out the value of appellate court opinions and tell you how to get the most out of every opinion from appellate courts, especially opinions from the USSC! All LEOs, especially trainers and administrators, must learn to read the entire opinion for themselves and apply the full effect of the court’s decision.

First things first. With any opinion, you must determine what the court examined. What was the issue “before the court?” This is critical as appellate courts, and especially the USSC, issue opinions as to narrow issues of law. People often misquote or improperly apply case law because they forget that the decision of every appellate court is limited to the issue before the court. The issue is framed by the facts of the case and the legal question to be resolved.

In United States v. Jones, the issue before the Court was stated as follows: “We decide whether the attachment of a Global Positioning System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.” This is stated at the outset to frame the rest of the opinion. Appellate courts typically work to decide narrow issues of law. As an example, in this case, the Court discussed other questions raised by this case but not presented by the facts of this case. Justice Scalia summarized the unwillingness of the Court to reach decisions on hypothetical cases stating, “We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”

The next part of the opinion is a statements of the facts. This is a critical part of the opinion. The Court spends a great deal of time compiling this statement of facts from the briefs submitted by the lawyers for both sides as well as the “record” of the case. The record consists of everything from the transcript of the trial, the evidence presented at trial, the motions and rulings in the trial court and the opinions of all other appellate courts that ruled on the case. In short, the USSC has before it everything related to the case. From this, the judges and their staff compile a statement of facts.

The statement of facts is critical to LEOs. This allows you to find out what law enforcement procedures or actions were examined by the USSC. You can then look at your own day to day operations and determine how to proceed. For example, based upon this opinion, law enforcement administrators will examine their internal procedures and change policies to conform to the new law of the land as expressed by the highest court in the country.

The next part of the opinion sets out the principles of law the Court finds applicable to the case. For example, in United States v. Jones, the Court set out the principle that a vehicle is an “effect” within the meaning of the Fourth Amendment which states, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Justice Scalia also explains the history of the Court’s opinions using the analogy of a search to a trespass and the later cases that explain how the reasonable expectation of privacy analysis guided the Court. The Court begins the opinion with this section because the Court must rely on precedent when ruling on a case. In this section, the Court sets out the precedent upon which it relies for this opinion. This part of the opinion is also important for LEOs because you can learn a tremendous amount about past cases and the principles that the Court finds important. At the end of this section, the Court comes to the conclusion or the “holding” in the case. In United States v. Jones, the USSC upheld the decision of the lower appellate court reversing Jones’ conviction.

Next are the concurring and any dissenting opinions. A concurring opinion agrees with the end result of the main opinion but states a different reason or interpretation of the law. A dissenting opinion is authored by a judge who disagrees with the main or “majority” opinion and explains why the judge or judges disagree. Concurring and dissenting opinions hold a great deal of insight about the Court’s reasoning or rationale for deciding the case.  Often, the reasoning of the concurring or dissenting opinion influence the court in future opinions.

So, on to United States v. Jones. The USSC found that the installation of a GPS device constitutes a “search” of an “effect” within the meaning of the Fourth Amendment to the United States Constitution. This is partly based upon a concept that a search is similar to a trespass. If a person would not be permitted to act in a certain manner because those actions would be a trespass to another, then the court considers the action by law enforcement to be a search. The second part of the analysis is that the Fourth Amendment protects people from unreasonable searches. In this case, the Court found that the insertion on a GPS device to the undercarriage of a privately owned vehicle constitutes a search and raises sufficient Fourth Amendment concerns so as to require a search warrant.

Read it, learn from it and practice the principles set out in the opinion. If you act contrary to the rules set out in this opinion, you could expose yourself to liability.

As a LEO, you should embrace every opinion of the USSC. The justices work hard to understand the realities of law enforcement. While it is easy to criticize an opinion, you must recognize that the United States Constitution was drafted by a group of people who were fearful of government. They drafted a document that would establish a government with boundaries that is responsible first and foremost to the people. In that analysis, the Court must err on the side of limiting government intrusions especially when the only effect is requiring LEOs to seek a search warrant.

Stay safe.

Filed under Case Law, Constitutional Law, Education, Legal Update, LEO Litigation, Officer Safety, Politics & Current Affairs, Uncategorized

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